Media Mentions

Lawrence Tribe, a constitutional law scholar at Harvard University, co-authored an op-ed calling on New York state Tuesday to move forward with a bill that would prevent President Donald Trump from using his pardon power to escape criminal responsibility. It noted that with Special Counsel Robert Mueller’s investigation having reached its conclusion, attention has now turned to the Southern District of New York — which is known to be pursuing cases surrounding Trump’s interests.“[It’s] easy to forget that the president, his company, his adult children and many of his close associates face potential criminal liability for business practices that trace back years,” Tribe wrote in an op-ed in the New York Daily News, co-authored by Ron Fein, the director of Free Speech for the People. “These are unlikely to be crimes of espionage or treason, but rather tax evasion, bank fraud and the like.”  

An op-ed by Cass Sunstein: Mark Zuckerberg, Facebook’s chief executive, recently raised a lot of suspicion when he argued for government regulation of his own company and other social media platforms. Some people have been skeptical of his motives, complaining that he is trying to fend off more aggressive regulation or to squelch competition. But instead of attacking the messenger, we should discuss the message on its merits. Zuckerberg’s argument is an important step in the right direction — one that should produce sustained discussion and eventually legislation. Heads of companies don’t usually contend that the government should be regulating them. But Zuckerberg rightly noted that if we were starting anew, we would not want private companies to decide, entirely on their own, how to answer the fundamental questions that social media providers are now facing. Consider the integrity of elections — a problem made most vivid by Russian interference with the 2016 U.S. presidential election.

An op-ed by Noah Feldman: In a 5-4 decision Monday, the U.S. Supreme Court refused to block the execution of a Missouri man who says the lethal injection may cause him excruciating pain because of a medical condition. The legal commentators have been out in force since, explaining the politics of the justices’ disagreement and the ever-changing technical aspects of death penalty jurisprudence. That analysis is useful, but it’s also beside the point. What’s really at stake is whether and how the Supreme Court should engage with what the late Justice Harry Blackmun memorably called “the machinery of death.” On that question the verdict of history will be clear: All nine justices have gotten it terribly wrong. And so has the Supreme Court itself. The reason is not legal, but moral. It’s morally repugnant for the justices to stage clinical-sounding debates on whether specific methods of execution are constitutional, balancing firing squads against injections, gas chambers and electrocution — all against the historical backdrop of hanging.

The Second Circuit unanimously overturned a U.S. Tax Court decision that had denied a retired Connecticut woman her tax refund, saying Tuesday that the ruling had resulted in differential treatment of taxpayers that Congress had intended to avoid. People who file a tax return before receiving a deficiency notice are usually allowed to go back three years before the notice was mailed to them to seek a refund or credit of overpaid income taxes. Those who do not file a return before receiving a deficiency notice were restricted to a two-year look-back period until 1997, when Congress enacted language permitting a refund or credit if the Internal Revenue Service issues the notice “during the third year after the due date (with extensions) for filing” a tax return. ... The case had attracted the attention of law professors T. Keith Fogg and W. Edward Afield, of Harvard Law School and Georgia State University, respectively, who filed a brief advising the Second Circuit that the “(with extensions)” language should add to the time period for awarding a refund, not lessen it.

Congressional efforts to reauthorize the Higher Education Act could derail Secretary of Education Betsy DeVos' attempts to finalize rules regarding Title IX and campus sexual assault. If Tuesday's Senate hearing is a barometer for how members of Congress might legislate on the issue as part of the larger higher education overhaul, the language is likely to be more measured than DeVos' proposed rules, which largely aim to bolster the rights of those accused. ...Most of the witnesses agreed that requiring a cross examination isn't necessary. "What is required is the opportunity to ask questions and I do not think it's essential to do it in a direct fashion," Jeannie Suk Gersen, professor of law at Harvard Law School, said, regarding due process. "I think that as long as there is an opportunity to put questions to the other side through a neutral party, that's enough."

Campus sexual assault should be addressed in the reauthorization of the Higher Education Act, U.S. senators emphasized during an education-committee hearing on Tuesday. The question is how legislation might complement the Title IX regulations that Betsy DeVos, the secretary of education, has proposed — and, given how controversial the draft rules are, whether lawmakers can agree on what that legislation should look like. ...Jeannie Suk Gersen, a law professor at Harvard University, said the federal government should provide a basic definition of sexual harassment. But she called attention to the difference between "severe and pervasive," which is what the proposed regulations say, and her preferred definition, "severe or pervasive." That's a subtle but significant distinction, she said, that would ensure that colleges are still held responsible for investigating the kinds of sexual misconduct that can derail students' education.

A newly filed lawsuit is challenging a censorship system the government uses to ensure that millions of former military and intelligence officials spill no secrets if they decide to write articles and books after they move on from public service. ... The legality of the censorship system is “unsettled” in part because “the practice of prior restraint by the government has grown enormously” since that case was decided, said Jack Goldsmith, a Harvard Law School professor and former Bush administration Justice Department official who has cowritten several articles critical of the process. At the C.I.A. alone, the agency went from reviewing about 1,000 pages a year in the early 1970s to about 150,000 in 2014, the lawsuit said, citing documents the A.C.L.U. and Knight Institute obtained under the Freedom of Information Act. “This is a huge problem,” Mr. Goldsmith said. “The government’s system of prior restraint is wildly overbroad, undisciplined and subject to inconsistent standards. It results in lots of important information that doesn’t threaten national security not being made public. It chills people from writing things that would help people understand how the government works.”

Attorney General William Barr concluded that President Trump did not obstruct justice due to lack of evidence to prove that he committed an underlying crime. Does one have to commit a crime to obstruct justice and is it possible that a sitting president can be indicted? Here & Now's Jeremy Hobson talks with Bloomberg opinion columnist and Harvard University law professor Noah Feldman.

An op-ed by Laurence Tribeand Ron Fein: New York has a narrow window of time left to preempt potential corrupt pardons from President Trump. The state needs to act quickly — before Trump does. With Special Counsel Robert Mueller’s report finished, and Trump proclaiming that he has been “totally exonerated,” it’s easy to forget that the president, his company, his adult children and many of his close associates face potential criminal liability for business practices that trace back years. These are unlikely to be crimes of espionage or treason, but rather tax evasion, bank fraud and the like. Can Trump pardon his way out of this thicket? When a criminal scheme violates both federal and state law (as white-collar crime often does), the possibility of state prosecution offers an important safeguard to limit the effectiveness of corrupt presidential pardons. At least it’s supposed to. Under longstanding Supreme Court doctrine, state and federal governments are considered “separate sovereigns,” and each sovereign may prosecute separately without running afoul of the Constitution’s double jeopardy clause.

An op-ed by Cass Sunstein: The controversy over the delayed release of Robert Mueller’s report, including the nature and extent of the redactions, raises large questions about government transparency in general. We can make progress in answering these questions by examining an important presidential memorandum, still in effect and binding all executive agencies in the federal government (including the Justice Department, which oversees disclosure practices). The memorandum is nominally about the Freedom of Information Act, but it speaks far more broadly. It begins plainly: “A democracy requires accountability, and accountability requires transparency.” It insists that “in the face of doubt, openness prevails.”

An op-ed by Noah Feldman: The news that President Donald Trump’s administration reversed 25 security-clearance denials, as a whistle-blower has now told the House Oversight and Reform Committee, seems outrageous on its surface. For Trump critics, it’s an example of the reckless abuse of executive power over and against the recommendations of the career civil servants who issue clearances. But those critics should think twice before assuming that the denial of access to the government’s confidential or top secret information is some sort of unassailable judgment that cannot be reversed without bad motives. The clearance process is opaque to the point of being almost undemocratic. Those seeking clearance do not learn the reasoning for the decisions, nor do they have any opportunity to make objections. If you are denied clearance, you never know why — and ordinarily, neither does anyone outside the clearance bubble.

The Labor Department announced a proposal today that would limit the ability of workers to sue big companies for violations made by franchises or contractors, according to the New York Times. This would affect workers who fall under the category of joint employment, in which more than one company directly or indirectly controls their working conditions. ... “It has provided such an obvious road map for employers to evade liability,” Sharon Block, a former Obama Labor Department official, now the executive director of the Labor and Worklife Program at Harvard Law School, told the Times. “But that’s going to introduce tremendous uncertainty into the lives of American workers who are subject to these business models.” Block says that like almost every Trump administration change, this proposal is likely to be challenged by the courts as it goes into effect, after a 60 day commend period. Courts may still decide to disregard it when hearing lawsuits.

Applications for debt relief from students who say they’ve been scammed by their schools have been languishing at the Department of Education. That’s according to data from the agency requested and published late last week by the office of Senator Patty Murray, the ranking Democrat on the Senate’s Health, Education, Labor and Pension committee, which oversees the Department. ...After a for-profit college association sued the government over the rule, the Department under current Secretary of Education, Betsy DeVos, delayed implementing the Obama-era regulation. Pulver’s organization, along with Harvard University’s Project on Predatory Lending, sued over the delays as did a group of states attorneys general. In the fall, a judge ruled the delays were illegal and that the 2016 law should take effect.

For years, consumer advocates have complained that food packaging misleads American consumers by conflating nutrient content with health. The Food and Drug Administration has proposed yet another message to help clear up this confusion: an agency-approved icon signifying that an item is indeed "healthy." ...In a bid to make the definition of "healthy" more science-based—and communicate that evidence to consumers—the agency issued a new guidance to food manufacturers in 2016. Both industry groups and public-health experts weighed in: Emily Broad Leib, director of the Harvard Law School Food Law and Policy Clinic, wrote in a 2017 comment in the Federal Register that the current approach "leaves room for food companies to argue that their use of 'healthy' should not be regulated." The Center for Science in the Public Interest has already criticized some of these arguments, including an organic egg company that petitioned the FDA for its products to be considered "healthy."

Dozens of women were filmed without their knowledge while receiving medical attention — including having surgery and giving birth — at a California hospital, according to a lawsuit filed last week in a state superior court. A lawyer for the women said 1,800 patients may have been filmed. The lawsuit alleges that motion-activated cameras were set up in three operating rooms at Sharp Grossmont Hospital in La Mesa, Calif., as part of an effort to catch a possible medicine thief. ...“They were reckless, to say the least,” Ms. Goddard said. It seemed that Sharp Grossmont could have found less intrusive ways to investigate the missing medicine, said I. Glenn Cohen, a professor at Harvard Law School and an author of the casebook “Health Care Law and Ethics.” He noted that he did not have information about the hospital’s defense. “It appears they kept at least some of the videos for some time,” Professor Cohen said, “and one would think the right thing to do, even on the hospital’s own rationale, would be rapidly review them and destroy them right after if they didn’t show any evidence of the drug theft. “The fact that they failed to do even that is quite troubling.”

A new, first of its kind study tracks the political leanings of CEOs by examining 18 years of political contributions by more than 3,800 CEOs of S&P 1500 companies. The big picture: The chief executives of America's largest public companies are more than twice as likely to lean Republican in their campaign contributions than to favor Democrats. Among big energy companies, CEOs' Republican leanings are even stronger: more than 9 in 10 energy CEOs side with Republicans, and none with Democrats. The study, by professors from Harvard Law School and Tel-Aviv University, classifies a CEO as a Republican or a Democrat if they gave at least two-thirds of their campaign contributions to one party or the other. CEOs that distributed their contributions more evenly between the two major parties were classified as neutral. ...Harvard Law School's Alma Cohen and Roberto Tallarita and Tel-Aviv University's Moshe Hazan and David Weiss analyzed the political contributions to candidates, committees, and parties from 3,810 individuals who served as CEOs of companies in the S&P 1500 index between 2000 and 2017.

If Saudi Arabia or some other foreign government wants to get into your phone, it's going to happen. Your only option: Turn off the internet and just use the phone to make calls. "They will get you," says David O'Brien, a senior researcher with the Berkman Center for Internet & Society at Harvard University. "Of course, it depends on how high a value of a target you are." Amazon CEO Jeff Bezos, whose phone should be un-hackable and as secure as Fort Knox, got compromised by Saudi Arabia, according to his security pro Gavin De Becker. "Our investigators and several experts concluded with high confidence that the Saudis had access to Bezos’ phone, and gained private information," wrote De Becker in the Daily Beast.

The Labor Department released a proposal on Monday that would limit claims against big companies for employment-law violations by franchisees or contractors. The proposal, related to a concept called joint employment, seeks to define when, for example, employees of a locally owned McDonald’s restaurant could successfully take action against the McDonald’s Corporation over violations of minimum-wage and overtime laws. ...Critics accused the department of laying out a step-by-step guide to employers seeking to get off the hook for violations even when they have substantial control over workers hired by their franchisees and contractors.“It has provided such an obvious road map for employers to evade liability,” said Sharon Block, a former top official in the Obama Labor Department who is executive director of the Labor and Worklife Program at Harvard Law School. “But that’s going to introduce tremendous uncertainty into the lives of American workers who are subject to these business models.” Ms. Block said that the legality of the regulation was likely to be challenged once it was finalized, and that courts could refuse to be bound by it.

A nightmare. A wasteland. A place of confusion and half-truth. Ask Americans these days for their impressions of the news media and they are likely to produce such grim descriptions. These sentiments boil and fester as political and regulatory communities, whether motivated to tackle information monopolies or address data-privacy concerns, seem poised to get serious about new laws that could fundamentally alter the media ecosystem. But much of this energy is focused on the big tech companies, when the crisis, as the public perceives it, is deeper. ...The federal government could help address this market failure through the tax code. As the legal scholar Cass Sunstein has pointed out, the government has long held the power to subsidize speech, a tradition begun when America’s 18th-century leaders gave postal subsidies to newspapers and magazines to ensure the diffusion of knowledge throughout the sprawling young republic.

Imagine, for a moment, what would happen if President Donald Trump or other like-minded public officials traded in their Twitter accounts for a new weapon in the ongoing war against the news media: suing journalists and news organizations for libel. For decades, media lawyers and journalists had little reason to worry about such a scenario, thanks to the 1964 Supreme Court decision New York Times v. Sullivan. To foster “uninhibited, robust, and wide-open” debate, the court required that public officials filing libel lawsuits must prove that the defamatory statements at issue were made with “actual malice,” a standard that made it almost impossible for public figures to mount and win libel lawsuits. But on Feb. 19, Justice Clarence Thomas wrote an unexpected opinion that unsettled that sense of security. ...Not everyone thought Thomas was wrong to raise the issue. “Some kind of chilling effect is not the worst idea, because it reduces the risk that falsehoods will destroy people’s reputations,” Harvard Law School professor Cass Sunstein wrote in a Bloomberg opinion column. “And in this context, the idea of democracy is a double-edged sword. If a speaker lies about a politician, and destroys her reputation in the process, democracy is not exactly well-served.”

An op-ed by Sam Garcia ’19 and Florida Representative Cindy Polo: “We won’t allow someone here illegally to commit criminal misconduct and simply be returned to our communities.”That is a quote from Gov. Ron DeSantis’ State of the State Address, and an example of what happens when you put being a politician over being a public servant. It is no secret this statement plays well politically with some Floridians — especially with the people who put DeSantis in office. However, it is clear that very little thought has been applied into how a law like this would practically work and effects it would have on Floridians. In order to turn the governor’s vision into a reality, the Florida Senate is proposing Senate Bill 168, which will effectively end sanctuary cities in Florida. The governor claims SB 168 will make Florida safer, but the results from other states that have enacted similar policies prove that he is not correct.